Why Can't Hollywood Get it Right?

Three Articles Published in Maricopa County Bar Association Lawyer Magazine, 2001

ADR has actually arrived in Hollywood. Three years ago, mediation was proposed by Jerry Seinfeld for George Costanza to resolve a business dispute. Last year, the hospital miniseries ER showed an actual mediation between two discontented employees. However, both television shows used that infamous and totally incorrect phrase "let the mediator decide!"

As you hopefully know, a mediator does not decide anything. Mediation is a process of facilitating a resolution developed and agreed to by the parties. An arbitrator, on the other hand, does decide who wins and losses. In this spirit, lets define once again the significant differences between the three most common forms of dispute resolution.

Negotiations is the most prevalent method of resolving disputes between two or more parties seeking to reach a jointly acceptable settlement of their dispute. It is typically a conversational process which attempts to persuade the other party to modify their initial position. Negotiation styles can be either win/lose (then most common approach) or interest-based (win/win). Effective negotiations require careful planning, active listening, persuasive skills, creativeness, and a desire to settle in good faith.

Mediation is facilitated problem solving. Mediation is the face to face process of a third person, the mediator, assisting the parties to problem solve their dispute in a depersonalized manner. Mediation is always voluntary, both in participation and agreeing to a settlement. Effective mediation requires a blend of probing for underlying interests, reality checking, conveying offers and counter-offers, patience, and clarifying the options to not settling. There are several styles of mediators.

Arbitration is the process of giving authority to a third person to make a decision for the parties. In typical arbitration, the parties have either previously agreed to direct any future disputes to arbitration through a contractual clause, or are agreeing to use arbitration to resolve an existing dispute. The parties select a neutral based on a variety of qualifications. A hearing is conducted using some degree of the rules of evidence. A written award is issued detailing the reasoning and remedies.

The MCBA ADR Committee meets each month on the first Thursday at 4 pm. The Chair is Troy Dodge of Ryan, Woodrow and Rapp. The editor of this series is Richard Fincher, a full-time mediator/arbitrator of employment and class action litigation. To join the Committee or inquire about CLE, contact Jenning Prevatte at 602-257-4200.

Are all Mediators the Same?
As ADR becomes more widely accepted in the legal community, the question is often heard "how do I select a mediator, aren't all mediators the same?" Here are some observations.

All mediators are not the same. In fact, mediators can be very different in style and capability to settle a particular dispute. One mediator effective in personal injury may be a disaster in employment cases. There are at least four initial considerations in selecting a mediator:

• What are my client's goals? Are there emotional needs or an ongoing relationship to be addressed?
• How difficult have been the negotiations to-date? Are we in a discovery war? Is there deep animosity between the parties?
• Why hasn't the case settled? What are the barriers? Does the case revolve around a factual or legal dispute?
• Will the mediator require special substantive background or settlement creativity? Should the mediator have a legal expertise in the matter? Will settlement require knowledge of tax or value-creation options?

There are two classic styles of mediation. Facilitative mediation empowers and encourages the parties to solve their disputes through problem solving. It is highly effective for cases involving emotions, ongoing relationships, and non-monetary remedies. Evaluative mediation focuses more on the weaknesses of the cases and the risk of litigation. It is more effective for cases involving straight financial settlements. In reality, most mediators use a blend of styles.

In summary, mediators are not the same, and no one mediator will be optimal for every type of litigation. Answering the four questions listed above will assist you in deciding what type of mediator to consider for your litigation.

The MCBA ADR Committee meets each month on the first Thursday at 4 pm. The Chair is Troy Dodge of Ryan, Woodrow and Rapp. The editor of this series is Richard Fincher, a full-time mediator/arbitrator of employment and class action litigation. To join the Committee or inquire about CLE, contact Jenning Prevatte at 602-257-4200.

Why Consider Mediating your Case?
Since ADR was not taught in law schools until the past ten years, many attorneys often ask themselves "should I consider mediation....what are the benefits of ADR?"

The classic reason to consider mediating a lawsuit are:

• Quicker resolution. The settlement rate for commercial mediation is over 80%. Most cases can be scheduled within 30 days.
• Confidential. Sessions and agreements are private.
• Allows more flexible remedies. The judicial process focuses on damages. Mediation focuses on creative solutions to underlying interests.
• Reduces litigation fees. Law firms find that mediation is cost effective because it settles the right cases and frees up time to focus on major litigation. Of course, clients appreciate settlements with lower costs.
• Can maintain relationships: The adversary system discounts the value of relationships. Mediation, is desired, can focus on relationships.
• Avoids uncertainty of trial process and appeals. Agreements are binding contracts.

The MCBA ADR Committee meets each month on the first Thursday at 4 pm. The Chair is Troy Dodge of Ryan, Woodrow and Rapp. The editor of this series is Richard Fincher, a full-time mediator/arbitrator of employment and class action litigation. To join the Committee or inquire about CLE, contact Jenning Prevatte at 602-257-4200.